Citation Nr: 9906660
Decision Date: 03/12/99 Archive Date: 03/18/99
DOCKET NO. 97-20 305 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUE
Entitlement to an evaluation in excess of 50 percent for
service-connected post-traumatic stress disorder (PTSD) from
the date of the original claim for service connection.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Associate Counsel
INTRODUCTION
The veteran had active service from October 1961 to October
1964, and from August 1965 to October 1972. He was awarded
the Combat Medical Badge.
Initially, the Board of Veterans' Appeals (Board) notes that
the veteran's original claims on appeal included claims for
an increased evaluation for service-connected hearing loss
and tinnitus. However, at the veteran's video conference
hearing at the regional office (RO) before a member of the
Board in November July 1998, the record reflects that the
veteran and his representative withdrew the issue of
entitlement to an increased evaluation for tinnitus and
confirmed that the veteran had previously withdrawn the issue
of entitlement to an increased evaluation for hearing loss in
the substantive appeal that was received by the RO in June
1997. A substantive appeal may be withdrawn in writing at
anytime prior to promulgation of a decision by the Board. 38
C.F.R. § 20.204 (1998). Thus, since the veteran's withdrawal
of the issue of entitlement to an increased evaluation for
hearing loss in his substantive appeal of June 1997 was
clearly in written form, this issue is therefore considered
withdrawn.
Moreover, while the record does not reveal that the veteran
submitted a similar request to withdraw the appeal as to the
issue of an increased evaluation for tinnitus, the transcript
of the November 1998 video conference hearing shows that it
was acknowledged at the hearing that he was no longer
pursuing this issue. The United States Court of Appeals for
Veterans Claims (known as the United States Court of Veterans
Appeals prior to March 1, 1999, hereafter "the Court") has
addressed the similar question of whether the requirement
that a notice of disagreement be in writing is met by
testimony at a personal hearing which is later transcribed
and associated with the claims file. In Tomlin v. Brown, 5
Vet. App. 355 (1993), the Court found that oral statements at
a personal hearing which were later transcribed met the
requirement that a notice of disagreement be "in writing."
Therefore, the Board finds that the veteran has also
withdrawn his appeal with respect to the issue of entitlement
to an increased evaluation for tinnitus. Consequently, the
Board will not consider either of these issues because they
are no longer in appellate status.
The Board further notes that it has recharacterized the issue
of entitlement to an evaluation in excess of 50 percent for
PTSD in light of the recent case of Fenderson v. West, No.
96-947 (U.S. Vet. App. Jan. 20, 1999), which is addressed
more fully below.
REMAND
With respect to the issue of entitlement to an evaluation in
excess of 50 percent for PTSD from the date of the original
claim for service connection, the Board notes that the
original May 1996 claim for service connection for this
disability was granted by a rating decision in October 1996,
with a rating of 50 percent, effective from May 1996.
Thereafter, the veteran filed a notice of disagreement (NOD)
with this decision in April 1997, a rating decision
confirming the evaluation of 50 percent was rendered in May
1997, and a statement of the case (SOC) as to the original
establishment of service connection and assigned rating of 50
percent was issued in May 1997. The Board notes that the
subject SOC identified the issue on appeal as entitlement to
an increased evaluation for PTSD, currently evaluated as 50
percent disabling.
The Board first finds that a recent Court decision appears to
point to procedural and substantive problems arising during
the development of this appeal which must be corrected. More
specifically, the Board finds that the rating decision of
October 1996 and the appellate development in this matter
must be reexamined in light of the decision
rating on appeal was erroneous and in identifying the
underlying NOD and whether the Department of Veterans Affairs
(VA) has issued a SOC or supplemental statement of the case
(SSOC).
The aspect of Fenderson which is most relevant to the issue
of entitlement to an evaluation in excess of 50 percent for
PTSD from the date of the original claim for service
connection is the manner in which the Court deals with the
issue in Fenderson of entitlement to compensable rating for
residuals of right-testicle surgery. Following a December
1992 grant of service connection for residuals of right-
testicle surgery, the appellant in Fenderson filed a NOD as
to the noncompensable rating assigned by the RO. Although
the RO issued an April 1995 SSOC purporting to address the
rating issue following the receipt of the NOD, the Court
found on appeal that the SSOC could not serve as an SOC as to
the right-testicle rating because that SSOC mistakenly
treated the right-testicle claim as one for an "[i]ncreased
evaluation for service[-]connected . . . . residuals of
surgery to right testicle," rather than as a disagreement
with the original rating awarded, which is what it was.
Consequently, because the RO had never issued an SOC in
response to the appellant's timely filed NOD as to his appeal
of the initial rating of his service-connected right-testicle
disability, the Court held that a remand was required
pursuant to Holland v. Gober, 10 Vet. App. 433 (1997) (per
curiam), for issuance of an SOC.
In this case, following the October 1996 grant of service
connection for PTSD and the assignment of a 50 percent
evaluation, the veteran filed a NOD as to the rating
decision. Thereafter, although the RO issued a May 1997 SOC
purporting to address the rating issue following the receipt
of the NOD, the May 1997 SOC arguably could not serve as an
SOC as to the PTSD rating of 50 percent because that SOC
treated the PTSD claim as one for an increased evaluation for
PTSD, rather than as a disagreement with the original rating
awarded. Fenderson appears to indicate that because the RO
never issued an SOC in response to the appellant's timely
filed NOD as to his appeal of the initial rating of his
service-connected PTSD, remand is required pursuant to
Holland, for issuance of an SOC. Upon receipt of the
statement of the case, the veteran must thereafter timely
file a substantive appeal before the case is returned to the
Board.
The Board notes, however, that the rationale of Fenderson
appears to look beyond the technical question of how the
issue was styled in the SOC to whether the substantive
disposition was defective. In this case, there is a
substantive defect apart from how the issue was styled. The
effective date of the grant was May 1996, the date of the
original claim. Accordingly, the rating criteria in effect
prior to November 7, 1996, were applicable at that time. The
original rating action in October 1996 contains a discussion
indicating that the rating criteria in effect prior to
November 7, 1996 were applied. A review of the record
appears to show, however, that the SOC and SSOCs in this case
did not provide the veteran with the rating the rating
criteria in effect prior to November 7, 1996. The
discussion in the SOC appears to show that the RO determined
that the 50 percent rating was based on the criteria in
effect prior to November 7, 1996 (without citing all
applicable "old" criteria), but that an increased rating
was not warranted because the disability did not produce
manifestations warranting a higher rating under the criteria
in effect since November 7, 1996. The SSOC appears only to
discuss the criteria in effect since November 7, 1996.
Therefore, the Board further finds that prior to the issuance
of a new SOC, the RO should readjudicate the issue of
entitlement to a higher original rating for PTSD in light of
the rating criteria in effect for this disorder both before
and after November 7, 1996. See 38 C.F.R. § 4.130 (1998),
previously designated as 38 C.F.R. § 4.132, and revised,
effective November 7, 1996.
The readjudication of the claim must proceed in light of the
determination of the Court that where a law or regulation
changes after a claim has been filed or reopened, but before
the administrative or judicial appeal process has been
concluded, the version most favorable to a veteran applies
unless Congress provided otherwise or permitted the Secretary
to do otherwise and the Secretary does so. Marcoux v. Brown,
9 Vet. App. 289 (1996); Karnas v. Derwinski, 1 Vet. App. 308
(1991); see also VAOPGCPREC 69-90 (O.G.C. Prec. 69-90).
Thus, the veteran's initial rating for the veteran's PTSD
must be readjudicated based on the old and, with the
qualification discussed below, the new rating criteria to
determine which version is more favorable to the appellant.
With respect to the retroactive application of the criteria
in effect since November 7, 1996, the VA General Counsel
initially provided the following guidelines as to the
relationship between the old and the new rating criteria for
mental disorders:
. . . among other changes, the November 1996
final rule established, in 38 C.F.R. § 4.130,
a 'general rating formula for mental
disorders' which identifies specific symptoms
and manifestations of mental disorders
associated with different percentage
disability ratings. That formula replaced
the general rating formulas for psychotic
disorders, organic mental disorders, and
psychoneurotic disorders previously contained
in 38 C.F.R. § 4.132, under which the various
percentage ratings were based largely upon
whether the claimant's social and industrial
impairment due to a mental disorder was most
accurately characterized as 'total,'
'severe,' 'considerable,' 'definite,' or
'mild.' The purpose of the amendment was to
remove terminology in former 38 C.F.R.
§ 4.132, which was considered non-specific
and subject to differing interpretations, and
to provide objective criteria for determining
entitlement to the various percentage ratings
for mental disorders. See 60 Fed. Reg.
54,825, 54,829 (1995).
4. On its face, the amended regulation is
neither more nor less beneficial to claimants
than the prior provisions. In some cases,
the amended regulation may be no more
beneficial to the claimant than the prior
provisions, because the evidence in the case
does not reflect symptoms or manifestations
associated with a higher rating under the
amended regulation. In other cases, however,
although the amendments were not designed to
liberalize rating criteria, the amended
regulation may be more beneficial to a
claimant because the evidence indicates that
the claimant has symptoms or manifestations
which, under the amended provisions, are
associated with a rating higher than that
which may have been assigned by the AOJ under
the prior, non-specific and more subjective
regulations. Accordingly, it will be
necessary for those with adjudicative
responsibilities to determine, on a case-by-
case basis, whether the amended regulation,
as applied to the evidence in each case, is
more beneficial to the claimant than the
prior provisions.
VAOPGCPREC 11-97. In light of this guidance, it appears the
General Counsel ruled that the revised criteria were not
designed as a liberalizing change, thus by implication that a
retroactive award or increase of a disability evaluation
would not be expressly barred by 38 U.S.C.A. § 5110(g) (West
1991); 38 C.F.R. § 3.114 (1998). Notwithstanding the General
Counsel's opinion, in the recent case of Rhodan and Haywood
v. West, 12 Vet. App. 55 (1998), the Court held that
38 U.S.C.A. § 5110(g) prohibited the retroactive application
of the revised criteria for rating mental disorders to award
or increase a disability rating prior to the effective date
of "the Act or administrative issue." Accordingly, the
Court held that "for any date prior to November 7, 1996, the
Board could not apply the revised mental disorder rating
schedule to a claim." 12 Vet. App. at 57. These cases
involved Board decisions prior to November 7, 1996. In
Haywood, the Board decision came after publication of notice
of final version of the criteria and the setting of an
effective date for its application, but before that effective
date. It would appear clear that the RO could not have
applied the revised criteria in any rating determination
prior to November 7, 1996. It would further appear that the
Rhodan Court has held that the effective date of an increased
rating under the revised criteria could not be awarded prior
to November 7, 1996. To this extent, Rhodan would appear to
overrule the interpretation in VAOPGCPREC 11-97 as to whether
the revised criteria for rating mental disorders constitute a
liberalizing change, and to limit the applicability of Karnas
on the facts of this case.
In the instant case, the RO has not had an opportunity to
reconsider the initial rating assigned to the veteran's PTSD
in light of both old and new rating criteria. More
importantly, the appellant has not had an opportunity to
enter evidence or argument to establish entitlement to an
increased initial disability rating under both the old and
new criteria. Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
Finally, while the Board has also considered the value of
further VA medical examination in this matter, its review of
the results of both past and recent examination results does
not reflect that additional examination is currently
warranted. First, the Board does not find that there is any
current contention on the part of the veteran or his
representative that his PTSD has worsened since his last VA
PTSD examination in August 1998. In addition, while the
veteran has complained that previous examination was somehow
inadequate in that the veteran was holding back the true
level of his disability, the Board finds that this is not an
adverse reflection on the examination itself, and there is no
evidence that such a complaint or concern of the veteran was
made known to any examiner during any previous examination.
Therefore, based on the current record, the Board does not
find that a new VA PTSD examination is warranted. Should
considerations change while this matter is in remand status,
the RO may of course exercise its discretion and schedule a
new examination.
Accordingly, to ensure that VA has met its duty to assist the
claimant in developing the facts pertinent to the claim and
to ensure full compliance with due process requirements, the
case is remanded to the RO for the following development:
1. The veteran should be permitted to
submit additional argument or evidence in
support of his claim.
2. The veteran should be asked to
identify any sources of recent pertinent
medical treatment for PTSD. Any medical
records other than those now on file
pertaining to this disability should be
obtained and associated with the claims
folder.
3. After the completion of any
development deemed appropriate in
addition to that requested above, the RO
should readjudicate the veteran's claim
for an evaluation in excess of 50 percent
from the date of the original claim for
service connection based on all
applicable old and new rating criteria.
In light of the above discussion, the RO
may evaluate the disability from May 1996
to November 7, 1996, under the criteria
in effect prior to November 7, 1996, and
then evaluate the disability after
November 7, 1996 under both the old and
the new criteria, and assign the rating
under the criteria which is most
favorable.
4. The RO must also provide the veteran
with a statement of the case as to the
issue of entitlement to a higher original
rating for PTSD. Thereafter, the veteran
must file a timely substantive appeal as
to this issue prior to the return of this
matter to the Board. If the veteran does
not file a timely substantive appeal as
to this issue, it will not be considered
a proper subject for appellate
consideration.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome as to these issues. The appellant need take no
action until otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, Veterans' Benefits Administration (VBA)'s
Adjudication Procedure Manual, M21-1, Part IV, directs the
ROs to provide expeditious handling of all cases that have
been remanded by the Board and the Court. See M21-1, Part
IV, paras. 8.44-8.45 and 38.02-38.03.
Richard B. Frank
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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